State v. Gamma

• Citation: 129 S.W. 734,149 Mo. App. 694
• Parties: STATE v. GAMMA.
• Decision Date: 14 June 1910
• Court: Court of Appeal of Missouri (US)

129 S.W. 734

149 Mo. App. 694

STATE v. GAMMA.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

1. INTOXICATING LIQUORS (§ 174) — VIOLATIONS—STATUTES.

Each sale of liquor in violation of the local option law is an offense, and where there are two sales by the same person on the same day to the same person, one sale immediately following the other, there are two separate offenses.

2. CRIMINAL LAW (§ 280)—IDENTITY OF OFFENSES—INDICTMENT—INFORMATION.

Under Rev. St. 1899, § 2476 (Ann. St. 1906, p. 1486), authorizing prosecution by indictment

or information, and providing that the procedure first instituted shall be pursued to the exclusion of the other, a defendant, pleading a pending indictment charging a violation of the local option law in bar or in abatement to a prosecution under an information charging such an offense, must plead the identity of the two offenses and prove such identity.

3. INTOXICATING LIQUORS (§ 36)—LOCAL OPTION LAW—VIOLATIONS—DEFENSES,

The validity of the adoption of the local option law in a county may not be attacked by motion to quash an information charging a violation of the law in the county, because it involves an issue of fact triable by the jury along with the case on the merits.

4. ELECTIONS (§ 269)—CONTESTS—STATUTORY RIGHTS.

Contests of elections are of statutory origin and are dependent on statutory provisions for their conduct.

5. INTOXICATING LIQUORS (§ 36)—VIOLATION OF LOCAL OPTION LAW—EVIDENCE—ADMISSIBILITY.

On a trial for violating the local option law, evidence of irregularity in the conduct of the local option election, to show that the law was not legally adopted, is inadmissible, because the adoption of the law may not be collaterally attacked, though the Legislature has provided no way to contest an election under the local option law.

6. INTOXICATING LIQUORS (§ 36)—LOCAL OPTION LAW—ELECTIONS—JUDICIAL DETERMINATION.

The county court acts judicially in the ordering of a local option election and in ascertaining and declaring the result, and where all the steps taken by it are regular and in accordance with the law, its declaration of the result may not be collaterally attacked.

7. CRIMINAL LAW (§ 783)—EFFECT OF EVIDENCE—INSTRUCTIONS.

Where on a trial for violating the local option law, the state without objection introduced in evidence the records of the county court showing the proceedings connected with the submission of the question of the adoption of the option law to a vote of the people, and no departure from the requirements of the law appeared in the records, the court properly charged that the law was in force in the county, and thereby declared the legal effect of the evidence.

8. INTOXICATING LIQUORS (§ 40)—LOCAL OPTION LAW—CONSTRUCTION.

Rev. St. 1899, § 3032 (Ann. St. 1906, p. 1738), providing that where a majority of the votes cast at a local option election shall be against the sale of intoxicating liquors, it shall not be lawful to sell any kind of intoxicating liquors "or beverage containing alcohol," prohibits the sale of any beverage containing alcohol in any quantity, great or small, though the form of the ballot and the notice of election provide "for the sale of intoxicating liquors," or "against the sale of intoxicating liquors."

9. COURTS (§ 231)—JURISDICTION—CONSTITUTIONAL QUESTIONS.

The Court of Appeals is without jurisdiction to determine constitutional questions, and where the question whether a provision in the body of a statute is within its title is raised, the case must be transferred to the Supreme Court for determination.

10. INTOXICATING LIQUORS (§§ 25, 40)—LOCAL OPTION—STATUTES.

The local option law (Acts April 5, 1887, p. 179), is not repealed by Laws 1891, p. 128, regulating the sale of intoxicating liquors, and when the local option law is adopted the act of 1891 is suspended.

11. INTOXICATING LIQUORS (§ 134)—STATUTES —CONSTRUCTION.

Under Laws 1891, p. 128, § 26, now Rev. St. 1899, § 3016 (Ann. St. 1906, p. 1728). defining the term "intoxicating liquors" to mean fermented, vinous, and spirituous liquors, or any composition of which fermented, vinous, or spirituous liquors is a part, a beverage containing alcohol in any quantity is an intoxicating liquor, without regard to the quantity of alcohol present.

For other definitions, see Words and Phrases, vol. 4, pp. 3736-3746; vol. 8, p. 7692.]

Appeal from Circuit Court, Madison County; Chas. A. Killian, Judge.

J. F. Gamma was convicted of violating the local option law, and he appeals. Affirmed.

See, also, 215 Mo. 100, 114 S. W. 619.

David M. Tesreau and John H. Chitwood, for appellant. Herbert S. Hadley, Atty. Gen., Frank Blake, Asst. Atty. Gen., and Emmett Williams, for the State.

REYNOLDS, P. J.

This is a prosecution commenced by information filed in the circuit court of Madison county by the attorney of that county against the defendant, for that on or about the 19th day of September, 1907, the local option law having theretofore been adopted and being then in force and effect in Madison county, he did then and there unlawfully sell to one Gahring, "one pint of `Meth,' the said `Meth' being a beverage containing alcohol," for a price named, without the defendant then and there having any authority to make said sale, contrary, etc. On a trial and conviction defendant appealed to the Supreme Court, claiming that the construction of the Constitution of this state and of the United States was involved. The Supreme Court, holding that the constitutional question had not been properly raised in the trial court, defendant must be considered to have waived it. That court accordingly, for lack of jurisdiction by it over the cause, ordered the transfer of the record to this court. Under the title, State v. J. T. Gamma, 215 Mo. 100, 114 S. W. 619, Judge Burgess delivering the opinion, stated the facts of the case so fully that it is unnecessary to repeat them.

The main errors relied on in this court are the overruling of the motion to quash, the exclusion of evidence offered, attacking the election at which it is claimed the local option law was adopted in Madison county, the claim of an indictment pending for the same offense and which was returned prior to the filing of this information, and the claim that as there is no evidence that "Meth," the article sold, was an intoxicating liquor, its sale did not come within the prohibitions of the local option law. Apart from these the points presented in the very able brief and argument of counsel for the appellant go to the constitutionality of the local option law, we having the benefit of the same brief and arguments that were filed in the Supreme Court by counsel for the defendant as well as by the then Attorney General of the state. These constitutional questions not being open to our determination, it is only necessary to notice those above mentioned.

Covered by the motion to quash, as well as by the special plea interposed in connection with the plea of not guilty, is the contention that under the act of March 13, 1901, amending section 2476, Rev. St. 1899 (see Acts 1901, p. 138 [Ann. St. 1906, p. 1486]), this defendant having been proceeded against by indictment before the present information was filed, the information should have been quashed and he should not be required to answer to the information. The difficulty with this contention is that it does not appear, either by the motion to quash, or by any evidence in the case, that the sale upon which the present information is founded is the identical sale upon which the indictment was based. As settled by a multitude of decisions construing our statutes, particularly relating to the sale of liquors, although the same principle applies to many other offenses, each sale or act constitutes a distinct offense. The mere fact that the same date and the same party are named as the date of the sale and the person to whom the sale was made, is not conclusive in itself of the fact that it was the same sale. It might well be that there were two sales on the same day to the same person; one sale even immediately following the other; each by the same defendant. Hence when the defendant attempted to plead the pending indictment in bar of the information or in abatement of the prosecution under that information, or when he attempted to plead or give in evidence one information as a bar against the other, as was also attempted here at the trial, the burden was on him to plead identity and follow that up by proof of identity of the act. It was open to the defendant to have followed up and possibly even to help out a faulty plea by oral testimony, but he did not even attempt to do this, beyond giving evidence tending to show the identity of the defendant, and rested entirely on the plea, which was a faulty one, lacking in preciseness. The evidence introduced was insufficient and had no tendency to show identity of offense, and in no manner helped out the faulty plea. It is hardly necessary to cite authorities on this proposition, but by way of illustration see State v. Andrews, 27 Mo. 267; State v. Small, 31 Mo. 197; State v. Thornton, 37 Mo. 360, loc. cit. 361; State v. Manning, 168 Mo. 418, 68 S. W. 341.

The other point covered by the motion to quash, as well as also attempted to be made at the trial under the plea of not guilty, goes to the adoption of the local option law in Madison county. This point could not be made by motion to quash, for it involved a question of fact, if properly raised, to be tried by a jury, and would have been properly tried along with the case on its merits, for our practice does not tolerate two jury trials, one on the plea in abatement, another on the plea in bar, in criminal cases; both are triable together. The matter relied on to show the invalidity of that law was not any irregularity, omission or failure to observe the law on the part of the county court either in the initial step which is filing with the county court the ...